Amendment No. 46 is related to amendment No. 45 and both may be taken together by agreement.
Wildlife (Amendment) Bill, 1999: Committee Stage (Resumed).
I move amendment No. 45:
In page 33, subsection (10)(b)(iii), line 44, after “furnish” to insert “to the Minister or to an officer of the Minister duly authorised”.
This is a technical amendment.
I move amendment No. 46:
In page 34, subsection (10)(b)(iv), line 1, after “inspection” to insert “by the Minister or by an officer of the Minister duly authorised”.
Why has the Minister withdrawn this particular section?
The purpose of section 38 of the Wildlife Bill was to amend section 29 of the Wildlife Act, 1976. Deputies may be aware that the Firearms (Temporary Provisions) Act, 1998, amended the application of section 29 of the Wildlife Act, 1976. Following on from that legislation, the report of the firearms legislation review group, which was established by the Minister for Justice, Equality and Law Reform and included representatives from my Department, advised that section 29 of the Principal Act required further amendment in relation to the issue of hunting licences. These amendments have been brought forward by way of the Firearms (Certificates of Non-Residents) Act, 2000, so there is no need to address them further through the amendments proposed in section 38 of this Bill. That is why I propose to delete this section which has been superseded by legislation.
I move amendment No. 47:
In page 37, paragraph (a), to delete lines 10 to 18 and substitute the following:
"'(1) It shall be an offence for a person, otherwise than pursuant to and in accordance with a licence granted by the Minister for the purposes of this section, to—
(a) mark by cutting, branding or tattooing, or
(b) attach any band, ring, microchip, tag or other marking device to, any wild animal or wild bird or to take by net, trap or by any other means any such animal or bird for the purposes of so marking it or attaching to it any band, ring, microchip, tag or other marking device.”.
Section 41 will amend section 32 of the Principal Act which allows me as Minister to control activities relating to the ringing or marking of wild birds or wild animals. This section will clarify the methods of marking or tagging that are illegal and the circumstances and manner under which such activities may be carried out. Amendment No. 47 is being proposed as a result of advice received from the Parliamentary Counsel. While not actually changing the text of the published provision, it involves the insertion of an improved layout which should greatly assist clarity.
The Minister said the section has the same meaning but the vocabulary has been clarified.
Amendments Nos. 48, 58, 84, 85, 86, 90, 92, 93, 94, and 97 are related. Amendments Nos. 59 and 60 are consequential amendments on amendment No. 58 and amendment No. 91 is consequential on amendment No. 84. We will take amendments Nos. 48, 58, 59, 60, 84, 85, 86, 90, 91, 92, 93, 94 and 97 together by agreement.
I move amendment No. 48:
In page 37, between lines 34 and 35, to insert the following:
"(b) in subsection (3), by the insertion after ’import’ of ’into the State from outside the European Union’,”.
As a result of the policy of the free movement of goods within the EU and the open border policy, it is generally not possible to exercise import or export controls with regard to countries within the EU. Consequently these amendments to relevant sections clarify that such controls apply to imports to Ireland from outside the EU or to exports from Ireland to outside the EU.
With regard to the free movement of goods, is the Minister referring to items related to wildlife, for example, guns, or to animal species?
We are referring to wild animals, traps and snares.
Does it include everything?
It includes traps and snares.
It is the paraphernalia rather than the animals. Is that correct?
The type of equipment of death or torture may not be illegal in other countries. We should, therefore, strike a standard in this country that should be as humane as possible, notwithstanding the limitations of free trade. Traps which are legal in other countries would not be accepted here. Do we have any discretion in this area?
I am told that the restrictions under the EU treaties are only in regard to animal health, arms, child pornography or drugs. The movement of animals cannot be restricted. That is why the amendments address the question of imports and exports to and from the EU.
It appears we are being selective in the standards we apply to the issue of exploitation. A lot of suffering is caused by the transport of animals, which I do not believe the Minister or anybody else would like to condone. The matter should be open for review. It is a much bigger problem than this Bill can deal with. It relates to EU legislation.
It also involves other Departments, such as the Department of Agriculture, Food and Rural Development.
Amendment No. 50 is an alternative to amendment No. 49 and both may be taken together by agreement.
I move amendment No. 49:
In page 37, paragraph (b), line 40, to delete “Firearms Acts, 1925 to 1990” and substitute “Firearms Act, 1925 to 2000”.
The amendment seeks to update the citation to take account of the new Act. The Minister's amendment seeks to alter the Bill in the same way.
Amendment No. 50 achieves the same purpose as amendment No. 49 in the name of Deputy O'Shea. I commend him on his diligence in this matter.
As the Minister's amendment achieves the same purpose I will withdraw amendment No. 49.
I move amendment No. 50:
In page 37, paragraph (b), line 40, to delete “1990” and substitute “2000”.
Amendments Nos. 52, 53, 54, 55 and 56 are cognate on amendment No. 51 and all may be taken together by agreement.
I move amendment No. 51:
In page 38, line 35, to delete "or wild animal" and substitute ", wild mammal or protected wild animal".
Section 43 amends section 34 of the principal Act which prohibits the use of certain traps, snares, nets, poisons etc. in the hunting of some wild birds or wild mammals. The Bill as published extended such protection to all wild animals and wild birds. However, by broadening the section to embrace all wild animals it was conceivable that an activity such as the removal of slugs from a garden or the trapping of wasps could be deemed to contravene the Wildlife Act. This would not be appropriate and I now propose amendments to rectify the situation. The section will not apply to wild birds, wild mammals and protected wild animals. A related amendment, No. 57, would allow the Minister, by regulation, to extend the provisions to any species of wild animal.
I see the Minister's point. She is attempting to deal with three categories, wild animals, wild birds and protected wild animals. Is that correct?
The categories are wild birds, wild mammals and protected wild animals.
I move amendment No. 52:
In page 38, line 43, after "bird" to insert ", mammal".
I move amendment No. 53:
In page 38, line 46, to delete "or a wild animal" and substitute ", wild mammal or protected wild animal".
I move amendment No. 54:
In page 39, lines 1 and 2, to delete "or wild animal" and substitute ", wild mammal or protected wild animal".
I move amendment No. 55:
In page 39, line 5, to delete "or by wild animals" and substitute ", wild mammals or protected wild animals".
I move amendment No. 56:
In page 39, line 10, to delete "or a wild animal" and substitute ", wild mammal or protected wild animal.
I move amendment No. 57:
In page 39, between lines 38 and 39, to insert the following:
"(e) by the insertion of the following after subsection (4):
'(4A) In relation to wild animals to which this section does not otherwise apply, the Minister may be regulations—
(a) apply this section to such wild animals, either generally or by reference to one or more species, or
(b) apply this section generally to species of such wild animals, subject to the exclusion of one or more such species.’,”.
Section 43 amends section 34 of the principal Act which prohibits the use of certain entrapments, snares etc. in the hunting of wild birds and wild animals. The Bill as published extended such protection to all wild animals and wild birds. However, as I stated earlier, such a wide broadening of the section is potentially problematic. Consequently, it is necessary to limit the application of section 43 to wild birds, wild mammals and protected wild animals in the first instance.
However, it is appropriate to include powers to enable the provisions of the section to be applied to specified non-protected species in case such is necessary. Therefore, I propose this amendment, which will allow the Minister, by regulation, to extend such provisions to any species of wild animal should the need arise.
The Minister is exercising her powers of discretion in this amendment. My purpose is to ensure that there is collective responsibility in Government because the practice of another Department is to oversee the snaring of large quantities of badgers, a protected species. I spoke to people in County Kilkenny today where snares are being set. They impose a lingering and painful death on what is a protected species.
Is the Minister aware of the various means of protecting wildlife? For example, one could vaccinate badgers rather than subject them to a slow lingering painful death in snares. When she has discretion under the Wildlife (Amendment) Bill, 1999, and indeed the Wildlife Act, 1976, has she plans to use those powers? There is a considerable amount of suffering which does not get us anywhere. It costs a great deal of taxpayers' money — £60 million on the TB eradication scheme — but her Department has responsibility for the wildlife in question.
On the snaring of badgers and the question of TB eradication, that is first and foremost, as the Deputy will appreciate, a matter for the Department of Agriculture, Food and Rural Development and the responsibility of the Minister there. Where it would apply to my Department is on the question of conservation of the animal concerned, in this case the badger.
I take on board what the Deputy said about the vaccination of badgers. Indeed this was discussed on the last occasion I had talks with the Minister for Agriculture, Food and Rural Development and he also recognised not only that his proposals were obviously to look after the concerns of those with cattle but that they would also look after those who would have concerns with regard to the badger where vaccination is concerned. Therefore matters have moved on a little and there seems to be more progress in that regard.
The question of animal welfare is definitely the responsibility of the Department of Agriculture, Food and Rural Development and does not come within the remit of my responsibilities. These responsibilities merge on one aspect of this and that is conservation.
We are getting a little mixed up here because the amendments talk about the hardware of snares, traps, etc., and whether they are used to catch protected or unprotected species is an arguable point. When a snare is laid it will catch whatever comes in its way. I am not sure whether the Minister can relieve herself of that concern as easily as that. The Minister for Agriculture, Food and Rural Development is simply applying for a licence to snare badgers and I do not believe it is defensible for the Government to allow snaring when there are more humane ways of dealing with the problem, if killing badgers is dealing with the problem. This is a grey area. We are talking about snares and about humanitarian questions as well as conservation.
We are also talking about protected and unprotected species, and of course the badger is a protected species and this cannot be done except following the issuing of a licence. Here we are trying to ensure that there are controls for unprotected species. From what he has said, the Deputy would obviously concur with the fact that such control is needed and that is what we are attempting in this amendment.
I made my point.
I move amendment No. 58:
In page 39, lines 39 to 41, to delete paragraph (e) and substitute the following:
"(e) by the substitution of the following for subsection (6):
'(6) Any person who imports into the State from outside the European Union, or has in his possession other than pursuant to and in accordance with a licence granted by the Minister in that behalf, or who in the course of his trade or business sells or offers for sale a trap, snare or net which pursuant to subsection (4) of this section is for the time being declared by the Minister to be a trap, snare or net to which this subsection applies shall be guilty of an offence.',
I move amendment No. 59:
In page 40, to delete lines 1 to 3 and substitute the following:
"and the said subsections (2) (other than paragraph (a)), (3) (other than paragraphs (b) to (d)) and (4) (other than paragraph (b)), as so amended, are set out in the Table to this section.”.
I move amendment No. 60:
In page 40, to delete lines 27 to 32.
Amendment No. 61 is in the name of Deputy O'Shea. Amendment No. 62 is an alternative. Amendments Nos. 61 and 62 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 61:
In page 40, line 40, after "braces" to insert "other than a wild bird or wild animal the use of which is permitted by licence of the Minister,".
This is an amendment sought by the falconers. They seek protection for temporarily tethered falcons.
Section 44 will extend the provisions of section 35 of the Principal Act which controls the use of scarecrows, decoys, simulated birds or animal calls, etc. Under the published Bill, controls are to be extended to cover the use of prohibited devices for repelling or scaring as well for the hunting of all wild birds and animals.
I am proposing two further amendments. It was represented to me that section 44 of the Principal Act, as amended by section 35, would be deemed to have a direct effect on the normal practice of the sports of falconry and fishing, and this was not intended. The proposed amendments will fully clarify the position in regard to these activities. This should meet the concerns reflected in Deputy O'Shea's amendment No. 61.
I did not table an amendment on this but I was aware of the concerns of the falconry group. This would probably address it; therefore I would be happy with it.
The angling groups which we have met and indeed the Department of the Marine and Natural Resources are happy with this amendment.
Is the falconry group?
Yes, as far as I am aware.
I do not see any difficulty with it. Therefore I am prepared to withdraw my amendment in favour of the Minister's amendment.
I move amendment No. 62:
In page 41, line 28, to delete "Minister.'," and substitute the following:
(4A) Nothing in this section shall be construed as restricting—
(a) the practice of falconry lawfully carried out in accordance with a licence or licences granted in accordance with section 41 of this Act, or
(b) the taking, killing or use of a wild animal, which is not a protected wild animal, for the purpose of, or while engaged in the practice of fishing.’,”.
Amendment No. 63 is a drafting amendment.
I move amendment No. 63:
In page 42, paragraph (a)(ii), line 5, to delete “and,” and substitute “, and”.
Amendment No. 64 is in the name of the Minister. Amendment No. 68 is related. Amendments Nos. 64 and 68 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 64:
In page 42, paragraph (a)(iii), lines 7 to 9, to delete “and by the substitution of ’, whether it is being so propelled or is stationary’ for ’while it is being so propelled”’.
In amendment No. 64 I am deleting a published amendment in the Bill which would have prohibited the use of a stationary vessel in hunting. This would have created an unworkable situation regarding hunting from a boat and the amendment would involve reverting to the situation applying under the Principal Act. Amendment No. 68 is a consequential and purely technical amendment which provides that the table should be amended accordingly.
Amendment No. 65 is in the name of the Minister. Amendments Nos. 66 and 67 are consequential. Amendments Nos. 65 to 67, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 65:
In page 42, line 10, to delete "and".
Section 45 will amend section 36 of the Principal Act and extend the prohibition on the use of mechanically propelled vehicles, vessels and aircraft in hunting to all wild animals and wild birds. Formerly only protected species were covered.
Amendments Nos. 65 and 66 are technical drafting amendments required arising from the insertion of this new subsection through amendment No. 67. Amendment No. 67 inserts a new subsection to clarify that the term mechanically propelled, when used in this section, embraces electronic propulsion. This is necessary as electrically propelled vessels may be used in the hunting of water birds.
What are electronically propelled vessels?
On a point of clarification, I have seen photo-voltaic powered boats.
Yes, the engines.
They work from the sun.
I move amendment No. 66:
In page 42, paragraph (b), line 13, after "animals'," to insert "and".
I move amendment No. 67:
In page 42, between lines 13 and 14, to insert the following:
"(c) by the insertion of the following after subsection (4):
'(5) In this section, "mechanically-propelled" includes propulsion which is electrical or partly electrical and partly mechanical.',".
I move amendment No. 68:
In page 42, lines 21 and 22, to delete ", whether it is being so propelled or is stationary," and substitute "while it is being so propelled.".
I move amendment No. 69:
In page 42, line 39, to delete "any wild bird or wild animal" and substitute "any protected wild bird or protected wild animal".
Section 46 is a complete substitution for section 38 of the principal Act which prohibits the use of lamps, lights etc. to hunt wild birds and protected wild animals. The Bill, as published, envisaged extending the application of this provision to wild birds and all wild animals. However, I have received strong representations from a number of interested parties to the effect that this could impact on the legitimate use of lamps by farmers in controlling foxes and rabbits on their lands.
I have decided to revert to the situation which existed under the principal Act and amendment No. 69 accordingly provides that the provisions of the section will apply only to protected species. The provisions in the Bill will, however, still extend the list of devices which are prohibited and thereby strengthen the protection afforded to protected species.
I move amendment No. 70:
In page 43, paragraph (a), line 15, to delete "April" and substitute "March".
Section 47 amends section 40 of the principle Act, the purpose of which is to restrict the burning or destruction of vegetation, mainly hedgerows, during the principal breeding and nesting season for birds. The Bill provides that the period in which such activities are prohibited be extended from 1 April, formerly 15 April, to 31 August. At meetings with various conservation NGOs I agreed to consider the possibility of extending the period of protection. I have now decided to further extend the period concerned in order to ensure that the species which commence breeding earlier in the season are afforded adequate protection. Under amendment No. 70, the period of protection is being brought forward by one month and will apply from 1 March. I acknowledge Deputy Clune's interest in this matter and her support for the stance I am taking.
I also proposed that it should be brought forward to 1 March because the period in question is important in terms of nesting.
I support the amendment and compliment the Minister on its introduction. However, even the existing guidelines are treated with disdain in many instances. A considerable amount of cutting takes place during the nesting season, notwithstanding the fact that the current period set aside in this regard is shorter than that proposed in the amendment. How will this provision be enforced? Initially this matter was catered for through the provision of guidelines so there was no prospect of calling people to task and all we could do was give people a mild rap on the knuckles. However, I am not sure whether a rap on the knuckles is possible even though the period has been extended. Will the Minister clarify the position?
I thank the Deputies for their support for this amendment. All of us had particular concerns about this matter and most if not all contributors voiced those concerns on Second Stage. My thoughts on the implementation and practical application of the new period will be seen in my response to amendment No. 71 which was tabled by Deputy Clune. We can build further on the goodwill and knowledge that has developed in the public mind about the need for hedgerows and the problems experienced in other countries where vast numbers of them have been cut down. For example, the clearing of hedgerows in many areas in Britain has led to widespread devastation. It was with that in mind that I drafted this amendment. In addition, there are health and public safety issues at stake here and I will refer to these on amendment No. 71.
I do not know if the Chair is permitted to ask questions but I intend to do so in any event. I notice that different county councils take different views on this matter and the approaches they take are not consistent. If the Minister draws up regulations to deal with this matter, would it not be better to introduce penalties or sanctions of some sort? I support what the Minister is attempting to do, but local authorities appear to have a haphazard view of their responsibilities in respect of this matter. How is it intended to implement the provisions in this section?
If I understand him correctly, the Chairman is seeking some form of standardisation in the approaches taken by local authorities. That can, perhaps, be best achieved through the introduction of regulations. I am in discussions with the Department of the Environment and Local Government to see how best we can follow through on this in the context of local authorities. We also intend to see what can be done in respect of the issue of biodiversity. In addition, the Department's heritage plan is nearing completion and it will be published in the near future. It is in these various contexts that we will consider how best to draft regulations in respect of local authorities.
I was waiting with baited breath for the answer to the Chairman's question because I asked a similar question, namely, will sanctions be introduced? In other words, with the exception of disappointment being expressed, what will happen if a contractor, be it a private contractor or one employed by a local authority, decides to butcher a hedge in the middle of the nesting season?
I welcome the thrust of this amendment, particularly as it relates to the lengthening of the nesting season. However, as my colleagues outlined, problems exist in terms of enforcement. For example, what is the position with regard to the cutting of a hedgerow at a junction where it has obscured the line of sight at the entrance to or exit from a particular road? Does the Minister have in her possession proposals regarding who will judge the work that needs to be done and when? I understand that a landowner has responsibility for the cutting of both sides of a hedge which separate his or her land from the road.
I refer here to what it is necessary to do in the context of health and safety, particularly road safety. Someone could decide that a particular course of action is in the interests of health and road safety but, effectively, they could be following their own agenda.
I understand what Deputy O'Shea is saying. With regard to the farming community, there are a number of initiatives that can be put in place to raise awareness. In that context, we have ongoing liaison with the forestry service of the Department of the Marine and Natural Resources and Coillte. The fact that far more people are becoming involved in REP schemes should also lead to progress in respect of people understanding the importance of hedgerows.
We must educate those living in rural areas about the need for hedgerows and their ongoing maintenance. However, we must also engage in further discussions in respect of the regulations which will govern the local authorities because bodies of that sort must set a good example. It is not an offence to cut hedges. It would be difficult to implement that for a number of reasons.
If it comes to my attention, as a public representative, following the enactment of the legislation that something contravenes this section, to whom do I report the transgression? Who will adjudicate on whether it is a transgression? That is my difficulty with this section.
If such transgressions take place, the Minister of the day should be informed.
How practical is that? If I call the Minister's office and report an incident in Waterford, who will respond? Who will carry out an inspection and issue a report to the Minister? Will the Minister have sufficient staff to police this properly? Is this window dressing because it cannot be implemented at the end of the day?
We will ask why the work had been carried out. Section 47(d) states:
"(3) The Minister may request from the person concerned details of any works carried out under subsection 2(c) and such details shall be furnished to the Minister by that person together with a statement of the public health or safety factors involved.”
That is a remote way of doing it. It would be more effective to have a person or office locally where such complaints can be made. Perhaps the wording is awkward. The Minister's agent will make the request. I want an indication as to whether this function could be delegated to local authorities, for example, or to the Health and Safety Authority so that there would be hands-on proximate policing of this practice.
I agree with the general principle of the Deputy's argument. In other words, regional accountability is necessary rather than having to go to the Minister of the day. However, any report of transgressions could be made to the rangers in a locality but the details of why the work was carried out must be furnished in a statement. This could also be done through the local rangers. However, the issue could be considered in the context of biodiversity and there might be an opportunity in the national development plan to widen this debate.
Section 47(d)(4) refers to “any proceedings taken in respect of contravention of this section”. Those words imply there will be sanctions under the regulations. Somebody will take proceedings and Members are asking who that will be?
The difference is between an individual and a public body. Under section 40 of the Wildlife Act, 1976, it is offence for a person to cut, grub, burn or otherwise destroy any vegetation. The time schedule outlined in the section will be amended when this legislation is enacted.
It is standard practice to take an individual to court. He or she may plead a defence that he or she was told to do it and so on but nonetheless work needs to be done on this section. It should be examined seriously before Report Stage. I agree it should be an offence to cut a hedge during the nesting season unless it is for reasons of public health and safety. How is that adjudicated? What are the sanctions? We needs answers to these questions.
There is no point in calling to task somebody on a tractor with a flail cutting a hedge who says he cannot be touched because there is not provision to the effect that he will be punished even though the section states that is an offence. The law is brought into disrepute if it is an offence and a person is disregards it flagrantly.
There is also a need to distinguish between the mechanical cutting of hedges, such as using a tractor with a flail which does considerable cutting in a short period without any discrimination in terms of sight lines and so on, and manual cutting about which organisations such as Crann are clear. Laying of hedges and so forth is a different activity to driving along in a tractor with a flail on the back of it. There should be a distinction between both forms of hedge cutting because we want to encourage good hedge laying for various biodiversity and aesthetic reasons. This needs to be examined further.
Is Deputy Sargent's request accepted by the Minister? Will you have considered what is an offence and its implementation by Report Stage?
There are provisions under section 69 for fines up to £50,000 or two years in prison for those who commit offences. The Deputy is at liberty to raise the issue on Report Stage if he wishes to debate it further but perhaps he should review section 69 in regard to offences.
What is it required to get from the hedgerow into court? Does that necessitate the wildlife officer reporting the matter and appearing in court to give evidence?
Yes or the Garda.
Some of the hedgerows containing most of the wildlife often run along narrow roadways and can be genuinely dangerous early in the season or at critical times of the season when birds are nesting. The Minister should examine some method whereby there could be trimming, perhaps with some light implement or manually, at an early stage before growth gets out of hand. A problem arises when children walk along these roadways going to and from school at the same time as vehicles are on the road. Genuine dangers exist and there is room for compromise so that we do not end up reacting to an emergency with machinery causing extensive damage to hedgerows and the wildlife in them. If there were a better way of managing it, we would achieve our objectives.
Coming from a rural area I understand that there are a great number of very narrow roads and the question of public safety must be taken into account by county councils. Each county council is aware of the times when it can cut hedges and when it is prevented from doing so and the reasons for that. The only exceptions for public authorities for cutting during the period when they are prevented from doing so are for public health and safety. That takes on board the point made by Deputy O'Shea. There are certain exceptions for safety and there is a provision for local authorities, but they must give reasons which come under the provisions of public health or safety.
Would that mean roadworks carried out on the road during the year?
That is one of the exemptions for local authorities.
It is something we should examine seriously. During the nesting season when birds are learning to fly, many of them are killed trying to fly across roads which have hedgerows on either side. As Deputy O'Shea said, perhaps local authorities should run some type of machine along the roads at the beginning of April to frighten away the birds and stop them nesting in hedgerows.
I move amendment No. 71:
In page 43, between lines 23 and 24, to insert the following:
"(b) (i) in subsection (2)(a), by the insertion of the following after ’ditch’:
'provided cutting is confined to strictly what is necessary for reasons of public health and safety',
(ii) in subsection (2)(b), by the insertion of the following after ’agriculture’:
'provided cutting is confined to strictly what is necessary for reasons of public health and safety',".
Has this been covered? I was anxious to ensure there would be no blanket exemptions for agriculture or forestry in hedgerow removal. I want the wording "provided cutting is confined to strictly what is necessary for reasons of public and safety" inserted. Section 40 of the original Act would be amended by inserting those words. From what I understood the Minister to have said previously, she believes the exemption to exist now. Is that right?
My amendment seeks to ensure there is no blanket exemption.
It would not be seen as a blanket exemption. The exemptions exist for a very specific purpose and I would have to obtain explanations in writing if there were a query about that.
Is it the case that they are not blanket exemptions? I accept there should be an exemption for reasons of public health and safety.
Perhaps local authorities should be asked to draw up guidelines in their plans.
We are in discussions with the Department of the Environment and Local Government about regulations for local authorities in this regard. I hope those discussions will bear fruit. I hope that will cover the situations about which Deputy Clune is concerned.
What about agriculture?
The amendment Deputy Clune has moved would imply that existing exemptions for hedgerow cutting etc. for the purposes of agriculture and forestry would only apply if the works were for reasons of public health and safety. Such provision would be unduly restrictive. However, we are improving the protection of hedgerows in a number of other significant ways in the Bill, as I have outlined to the Deputy, and I have also referred to our discussions with the Department of the Environment and Local Government. We also have ongoing liaison with the forestry service of the Department of the Marine and Natural Resources and Coillte.
Can a hedgerow be destroyed for agricultural reasons from 1 March to the end of August?
That would seem to be the situation.
Does that mean there is no protection? My amendment seeks to ensure that hedgerow cutting is done for reasons of public health and safety. I do not have much agricultural experience but I would have thought local authority and agricultural work would be the primary reasons for hedgerow cutting.
What Deputy Clune seems to be asking is that the Minister would have discussions with the Department of Agriculture, Food and Rural Development as well as with the Department of the Environment and Local Government.
Would it be appropriate at this stage to say that we could discuss this later on Report Stage because I need to consider this further?
It would, yes. As matters stand, almost anyone can remove a hedgerow for agricultural reasons. That would be my reading of the Bill, but I agree to return to this on Report Stage.
I support Deputy Clune. The Department of Agriculture, Food and Rural Development also has an important role to play in ensuring we protect hedgerows.
Amendments Nos. 71a and 71b are related and may be taken together.
I move amendment No. 71a:
In page 43, paragraph (d), lines 39 and 40, to delete “The Minister may request from the person concerned” and substitute “The person concerned shall provide to the Minister”.
In reading through the Bill, I note that it provides that the Minister may request from the person concerned details of any works carried out under section 47(2)(c). I am anxious, as I know the Minister is, to improve the conservation quality of the Bill. With that in mind, would it be possible to accept the amendment which would have the effect of obliging the person carrying out the work to provide details of the work rather than the Minister requesting them? If nothing else, this would reinforce the understanding that this person is impinging on the conservation quality or biodiversity of the area and should account for themselves. That is all I ask.
What happens otherwise, as all present know, is that ignorance is deemed to be good defence and a person can argue that he or she knew nothing about regulations or guidelines and that it was all a big mistake but, unfortunately, the job is done. The person doing the work should be obliged to provide some account of his or her activity. Otherwise there will be interpretations of such very obvious exemptions, such as public health and safety, as meaning whatever one wants them to mean. They do not just mean sight line clearance, as we would consider them here, they can mean everything — inclement weather can have an effect on public health so one could cut the hedge in summer so as not to catch a cold. There are amazing claims as to what public health and safety mean. The person should be required to provide details of what the works are and local authorities need to be reminded of that. Some local authorities do not even mention hedgerows in their development plans and there is a lot of work to be done to raise awareness.
I am thinking of the practical implications of Deputy Sargent's suggestion. I understand where he is coming from, but it would be impractical to require all bodies to provide the Minister with continuous reports on ongoing hedge-cutting activities. That is not very realistic, but I have said that in cases where there is cause for concern that I would like to see such bodies being asked for detailed reports. That would cover the situations referred to by the Department and would heighten awareness of the importance of our hedgerows and that there are certain strict provisions which must be adhered to. I would require bodies involved in such cutting to provide me with relevant information. That would heighten awareness of the importance of the work being carried out.
From a practical point of view, I cannot see how every body being required to send in a report on its hedge-cutting would work. However, if concern arises in any of these cases there is a provision whereby the Minister can ask for a detailed report. That still sends a strong message.
I have some sympathy with the Minister's fear of getting large volumes of reports on every highway and byway where hedges are being cut. However, if she is not accepting the amendment can I at least recommend that in discussions with the Minister for the Environment and Local Government that the local authorities be urged to maintain an inventory to document the works being done on hedgerows in a local database which the Minister can ask to see. The Bill states that the Minister may ask details of any works from the person concerned and there should be a body of information in each local authority documenting the work that has been done. I say this because in my experience it is the road departments which are responsible for hedge cutting and they have a lot on their minds. Hedge cutting can sometimes be quite low on their work programmes and if awareness is to be increased local authorities should keep reports and document the work being done, which I urge the Minister to request from time to time.
I assure the Deputy that in discussions with the Minister for the Environment and Local Government I will make the points outlined.
And perhaps also with the Minister for Agriculture, Food and Rural Development.
I move amendment No. 72:
In page 44, paragraph (d), lines 22 and 23, to delete “the orders Accipitriformes, Falconiformes or Strigiformes” and substitute “the orders Accipitriformes, Falconiformes and Strigiformes”.
I move amendment No. 73:
In page 44, paragraph (d), lines 26 and 27, to delete “the orders Accipitriformes, Falconiformes or Strigiformes” and substitute “the orders Accipitriformes, Falconiformes and Strigiformes”.
I move amendment No. 74:
In page 44, paragraph (d), lines 30 and 31, to delete “the orders Accipitriformes, Falconiformes or Strigiformes” and substitute “the orders Accipitriformes, Falconiformes and Strigiformes”.
I move amendment No. 75:
In page 45, line 6, to delete "the orders Accipitriformes, Falconiformes or Strigiformes” and substitute “the orders Accipitriformes, Falconiformes and Strigiformes”.
I move amendment No. 76:
In page 45, lines 8 and 9, to delete "the orders Accipitriformes, Falconiformes or Strigiformes” and substitute “the orders Accipitriformes, Falconiformes and Strigiformes”.
I move amendment No. 77:
In page 45, lines 11 and 12, to delete "the orders Accipitriformes, Falconiformes or Strigiformes” and substitute “the orders Accipitriformes, Falconiformes and Strigiformes”.
Amendments Nos. 78 and 79a are related and may be taken together by agreement.
I move amendment No. 78:
In page 47, between lines 18 and 19, to insert the following:
"(c) by the insertion after paragraph (b) of the following:
(c) any maintenance on any existing land drainage scheme within the meaning of the Arterial Drainage Acts, 1945 and 1995,’,”.
This section deals with arterial drainage and wetlands and I seek to have the maintenance of existing land drainage schemes included under this section. It can be shown that maintenance of existing land drainage schemes — which appear to me not be covered here — can have an effect on the proposed NHA and special areas of conservation. I want the maintenance of existing schemes recognised as part of the Bill. Deputy Sargent's amendment is in the same vein.
I support Deputy Clune. My amendment is similar and refers to a request brought to our attention by An Taisce. It is logical to want to include the maintenance of existing drainage schemes as well as new ones under the terms of the Bill's protection. I hope the Minister sees the logic in that and accommodates it.
This amendment would oblige the Office of Public Works to consult the Minister prior to carrying out any maintenance work on existing arterial drainage schemes. Most such schemes are in place for many years and any ongoing works are necessary to avoid flooding. I would not favour the imposition of such robust conditions for maintenance works through legislation at this stage. The matter would be best addressed through consultation and agreement.
An interdepartmenal committee comprising representatives of my Department and the Office of Public Works has been set up to deal with the wildlife issues involved in drainage works. The committee has been very successful in preventing problems and in resolving difficulties when they arise and I feel we should continue with this successful co-operative and practical approach.
More generally, schemes currently examined or undertaken under the Arterial Drainage (Amendment) Act, 1995, deal in the main with localised urban flooding. All wildlife and environmental considerations are dealt with in the development of these schemes and they are also subject to a consultation process. Furthermore, every new arterial drainage scheme must now go through a public exhibition process prior to confirmation of the scheme.
There should be a method of consultation with the Minister because it has been shown that maintenance of these schemes can damage sites. I would like to see an obligation on the Office of Public Works to consult with the Minister, as such works could have a detrimental effect on proposed sites. If one enters consultation one is recognising that a situation may arise and it is important to address it here.
I have some sympathy with the Minister who is conscious of the workload she is giving rise to by way of these amendments. However, machinery is larger now than when many of these drains were put in place. I discovered when dealing with another committee on trying to find ways to alleviate flooding on the Shannon that one community's or landowner's drainage is another community's or landowner's flooding. A considerable amount of consultation, regulation and monitoring is needed so that what is considered as maintenance of an existing drainage scheme does not turn out to be almost a brand new scheme. We are not providing for this in the Bill unless we insert an amendment to include the type of work which can be explained as maintenance but which, in reality, constitutes a new job on an existing drainage scheme.
I also received representations on this issue. I chose not to table an amendment but I see difficulties in terms of the practical application of this amendment. For example, if there is an emergency due to flooding and something has to be released even though it may cause some damage to wildlife, there may be a wider agenda in terms of damage to property and danger to human life. I would like to see the committee referred to by the Minister strengthened in that there should be certain procedures laid down as to what the Office of Public Works can legitimately do in an emergency or in the case of works being carried out which do not constitute a danger to the integrity of the countryside surrounding the drainage scheme in question.
The situation is too loose at present but I do not wish to see matters tightened to the extent where the Office of Public Works may not be able to respond in situations where there is no real difficulty or, on the other hand, where there is an emergency.
We are trying to achieve a balance but that is very difficult. Problems may have existed in the past but the consultation and agreements which have taken place have been very productive, and that is the way to go. Legislation is not the way to proceed at present but if the Deputy wishes we can discuss this issue further on Report Stage.
I move amendment No. 79:
In page 47, paragraph (d), lines 23 and 24, to delete “’nature reserve, refuge or natural heritage area”’ and substitute “’nature reserve, refuge, natural heritage area or area subject to a notice served under section 16(2)(b) of the Wildlife (Amendment) Act, 2000”’.
Section 50 amends section 43 of the Principal Act which placed certain obligations on the Office of Public Works to consult the Minister when carrying out drainage works liable to affect lands, such as nature reserves, and to take all practical steps to prevent damage to such sites. This requirement formally applied only to nature reserves, refuges for fauna and lands subject to management agreements. Section 50 extends the protected provisions to notified and designated NHAs.
This is a technical amendment designed to provide consistency throughout the section by reflecting the protection proposed for notified and designated NHAs in all subsections of section 50.
We discussed this issue previously.
Chairman, in section 50 of the Bill, line 25, reference was made to "section (1)". This should read "subsection (1)".
Is that agreed? Agreed.
Amendment No. 80 is in the name of the Minister. Amendment No. 81 in the name of Deputy O'Shea is an alternative so these amendments may be taken together.
I move amendment No. 80:
In page 47, lines 44 to 49, and in page 48, lines 1 to 17, to delete paragraph (a) and substitute the following:
"(a) by the substitution of the following for paragraph (c) of subsection (1):
'(c) carries on the land—
(i) any firearm, or
(ii) any net, or other weapon, instrument or device capable of being used for hunting a wild bird or a wild animal,
Section 51, as published, proposed that persons hunting on land with a dog, ferret, bird of prey or pack of hounds without the permission of the owner or occupier would be guilty of an offence. However, strong representations have been made to me to the effect that this would be unworkable as regards normal hunting practices with a dog, ferret, bird of prey or pack of hounds. On Second Stage I signalled that I had decided to drop this provision in so far as it relates to hunting with such animals.
I am proposing to proceed with the provisions which will enable an authorised officer or a member of the Garda to seize a firearm or other weapon or device in exercise of the powers under this section. My amendment will meet the concerns expressed in amendment No. 81 in the name of Deputy O'Shea.
The Minister informed us on Second Stage that she would be addressing this issue and I accept her amendment.
I am disappointed the Minister has decided to row back on her original plans to limit access to private land for unauthorised hunting. Some people may be pleased by the Minister's decision but the silent majority of people will not be happy. As a result of this decision, landowners will find themselves visited by people carrying out activities which they may find objectionable and which will interfere with their crops and land. I am disappointed by the Minister's amendment. I hoped the original idea would hold but politics is subject to pressure.
It was not a question of rowing back on the initial principle. There was concern that the wording of the Bill as published had certain implications which were never intended, and the issue was one of addressing that situation rather than rowing back on the provisions.
When explaining the section the Minister mentioned an authorised officer, who would be a garda or a ranger, and their duties. However, that is not referred to in the section or in the Minister's amendment.
It is referred to in section 72 of the primary Act. Section 72(1) says "the Minister may appoint in writing a person to be an authorised person for the purposes of the Act" and it refers to the powers of the gardaí and authorised persons.
My legal advice is that as the Bill stands, without the Minister's amendment, it is a criminal offence for a person to stray with a pack of dogs or a falcon onto somebody else's land. My advice is that such a matter should be dealt with in criminal law.
What the Deputy has said is correct. If the provision was left in the Bill it would be an offence. Because of that practical implication there was much genuine concern expressed, including to myself, that this should be amended. That is why on Second Stage I promised I would bring forward an amendment to the section. Otherwise, the implications of the section would be quite daft.
I move amendment No. 81a:
In page 50, paragraph (f), lines 34 and 35, to delete "in such manner as the Minister thinks fit" and substitute "according to best established ecological and humane practice or principles".
I am thinking about all the people who will be affected by the packs of hounds going across their land. Section 52(f) includes the following:
(9A) Where possession of a protected wild bird or a protected wild animal results from the unintentional capture of the bird or animal and such possession is continuing, the person in apparent possession or control of the bird or animal shall, at the direction of the Minister, release or otherwise dispose of the bird or animal in such manner as the Minister thinks fit.".
While the Minister may be an expert in all matters to do with animal handling and ecological criteria, the amendment I propose would be a little more objective in that it would allow the Minister to consult and claim the best ecological and humane practice rather than doing what came into his or her head and act on his or her discretion. We should be trying to ensure public confidence that the actions of the Minister are based on the highest principles and motives rather than having the phrase "as the Minister thinks fit", which could mean anything. I ask the Minister to take this into account and to accept the amendment.
I do not believe it is necessary or appropriate to use the form of words proposed by the Deputy because the wording in the Bill as it stands is adequate to comprehend the inclusion of ecological or humane considerations in a direction issued by the Minister. Obviously the best advice would be available to the Minister. I do not think a Minister would issue a direction to dispose of a bird or animal in an ecologically unfriendly or inhumane way. I have no problem with the thrust of what is suggested by Deputy Sargent, but I feel it is already adequately catered for in the provision as drafted. I point out that all functions exercised by the Minister under the Act must be based upon wildlife conservation considerations. That is the principle from which one must approach the matter. Therefore the Minister would be carrying out his or her duties in the way Deputy Sargent wishes. The Deputy will be aware that the Minister has an obligation to carry out his or her duties with due consideration for conservation.
I will not press the amendment. I am reassured by what the Minister has said, but somebody reading the Bill would want similar reassurance. I accept the Minister's bona fides, but her term as Minister may not be as long as we would wish.
Amendment No. 82 is in the name of the Minister. Amendment No. 83 is cognate and both amendments may be discussed together by agreement.
I move amendment No. 82:
In page 52, line 45, after "fee" to insert "(if any)".
Section 54 is a complete substitution for section 48 of the Principal Act. Among other things, it removes the requirement for applicants for licences for wildlife dealing to have their suitability certified by the District Court before applying to me as Minister for a licence. The consideration for applications for the entire licensing function will in future fall to the Minister. These amendments are technical in nature and are necessary to ensure the charging of a fee for licences will not be predetermined by the Wildlife Acts but will be at the discretion of the Minister.
I move amendment No. 83:
In page 53, subsection (3), line 5, after "fee" to insert "(if any)".
I move amendment No. 84:
In page 55, paragraph (a), between lines 36 and 37, to insert the following:
"(i) by the insertion after 'importation' of 'into the State from outside the European Union',".
I move amendment No. 85:
In page 56, line 22, after "imported into the State" to insert "from outside the European Union".
I move amendment No. 86:
In page 56, lines 32 and 33, after "imported into the State" to insert "from outside the European Union".
I move amendment No. 87:
In page 56, lines 47 and 48, to delete "posted in a place outside the State and".
This is a technical amendment inserted on legal advice. It was deemed too narrow to only allow the examination of a postal packet posted in a place outside the State. Our advice is that it could be very difficult to prove from where a package originated. Amendment No. 88 is purely a technical amendment in nature and results from legal advice. It is necessary to clarify the officer of An Post as the duly authorised officer.
Amendment No. 89 will provide me with the power to prohibit the possession of wild species if it is deemed that such a species would be detrimental to native stocks. Section 57(d) already allows the Minister to prohibit the introduction of a wild species which could be detrimental to native stocks. It is considered appropriate that the Minister should also be able to regulate the possession of a species which could, at a future date, pose a threat to native species. Ireland has already seen the unwelcome introduction of such non-native and damaging species as the zebra mussel and hogweed and, in so far as we can, we would hope to avoid similar problems in the future.
I move amendment No. 88:
In page 56, line 49, to delete "the officer" and substitute "that officer".
I move amendment No. 89:
In page 57, line 3, before "introduction" to insert "possession or".
I move amendment No. 90.
In page 57, to delete lines 37 and 38, and substitute the following:
"and the said subsection (1) (other than paragraphs (b), (d) and (e)), as so amended (including an amendment by virtue of section 6(1) of the Ministers and Secretaries (Amendment) Act, 1939), is set out in the Table to this section.”.
I move amendment No. 91:
In page 57, between lines 39 and 40, to insert the following:
"(1) The Minister may, after consultation with the Minister for Agriculture, Food and Rural Development, by regulations prohibit the importation into the State from outside the European Union, save under and in accordance with a licence granted by or on behalf of the Minister under this section, of all or any of the following:".
I have tabled a Special Notice Question in the Dáil and wish to be excused from the meeting.
I move amendment No. 92:
In page 58, paragraph (a), between lines 2 and 3, to insert the following:
"(i) by the insertion after 'export' of 'from the State to outside the European Union',".
I move amendment No. 93:
In page 58, line 39, after "exported" to insert "from the State to outside the European Union".
I move amendment No. 94:
In page 58, line 48, after "exported" to insert "from the State to outside the European Union".
Amendment Nos. 95 and 96 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 95:
In page 59, line 9, to delete "as the case may be.'." and substitute "as the case may be.',".
Amendment Nos. 95 and 96 relate to the export of flora and fauna. Amendment No. 96 updates a provision in the Act by referring to An Post and provides that any postal packet, not just one posted to an address outside the State, may be examined if it is suspected of containing anything which has been exported illegally. Amendment No. 95 is a purely technical amendment.
There is one reference in section 58 of the Bill, as published, which requires amendment. Amendment No. 96 contains the phrase "open for that propose" which should read "open for that purpose". It is proposed that the Bills Office would correct this minor error.
Is this a new provision?
I move amendment No. 96:
In page 59, between lines 9 and 10, to insert the following:
"(c) by the substitution of the following for subsection (4):
'(4) Any officer of An Post duly authorised in that behalf may detain and examine and if necessary open for that purpose any postal packet containing, or suspected by that officer of containing, any thing which is being exported in contravention of this section, and if a postal packet so detained contains any such thing, the officer of An Post shall dispose of the packet and its contents in accordance with the instructions of the Minister.',".
I move amendment No. 97:
In page 59, line 16, to delete "Minister for Agriculture and Food, by regulations prohibit the export" and substitute "Minister for Agriculture, Food and Rural Development, by regulations prohibit the export from the State to outside the European Union".
Amendment No. 98 was merely intended to recognise the current title of the Minister for Agriculture, Food and Rural Development and was covered by amendment No. 97 in the name of the Minister.
Amendment Nos. 99, 100, 101, 102, 103, 108, 109 and 110 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 99:
In page 60, between lines 5 and 6, to insert the following subsection:
"(3) The import, export, or any attempts thereat, of any specimen of a species listed in the annexes to the CITES Regulations without the required valid permits or certificates, or with forged, altered or otherwise fraudulent permits or certificates, shall be prohibited.".
Section 59 concerns the implementation of the EU CITES regulations in Ireland. Together with other provisions in the Bill, it will enable Ireland to ratify CITES, the UN Convention on International Trade in Endangered Species. Amendment Nos. 99 and 109 propose the insertion of two new subsections into section 59. Amendment No. 99 will ensure that the import or export of any specimens listed in the annexes to the CITES regulations without the requires permits etc. will be prohibited.
Amendment No. 109 will ensure that the application of the Customs Acts in relation to the import or export of CITES specimens without the required permits etc. will not be precluded by any of the provisions of this section. In effect, an offence committed under this section in regard to illegal import or export of CITES species may be tried under the customs Act, if deemed appropriate. Both amendments arose from consultation with the Revenue Commissioners and the receipt of legal advice. The provisions are necessary to allow customs and excise officials to act in relation to illegal import or export of CITES listed species.
Amendment Nos. 100, 101, 102, 103, 108 and 110 are purely technical amendments arising from the insertion of the new subsections.
I move amendment No. 100:
In page 60, line 6, to delete "(3)" and substitute "(4)".
I move amendment No. 101:
In page 60, line 11, to delete "(3)" and substitute "(4)".
I move amendment No. 102:
In page 60, line 12, to delete "(4)" and substitute "(5)".
I move amendment No. 103:
In page 60, line 12, to delete "(5)" and substitute "(6)".
I move amendment No. 104:
In page 60, line 26, before "species" to insert "specimen of a".
Amendment Nos. 104 and 105 to section 59 which deals with the CITES regulations are technical in nature and provide for the insertion of the words "specimen of a" before "species". This terminology is in line with that used in the CITES regulations and in other parts of section 59.
I move amendment No. 105:
In page 60, line 33, before "species" to insert "specimen of a".
I move amendment No. 106:
In page 60, line 39, after "Article 9" to insert "of the Council Regulation".
This is a drafting amendment.
I move amendment No. 107:
In page 61, to delete lines 26 to 28 and substitute the following:
"(b) A person who aids or abets the commission of an offence under subsection (4)(b)* or (5)(a)* shall be guilty of an offence.”.
Section 59 concerns the implementation of the CITES regulations in Ireland. Amendment No. 107 replaces subparagraph 59(4)(b) as published. This subsection provides that it is an offence to aid or abet the commission of an offence under specified provisions. The amendment is a necessary technical clarification, consequent on the insertion of a new subsection.
I move amendment No. 108:
In page 61, line 29, to delete "(5)" and substitute "(6)".
I move amendment No. 109:
In page 61, between lines 32 and 33, to insert the following:
"(7) Nothing in this section shall prevent the application of the Customs Acts to offences committed under the said Acts in relation to the import, export, or any attempt thereat, of prohibited specimens in contravention of subsection (3) of this section.".
I move amendment No. 110:
In page 61, line 33, to delete "(6)" and substitute "(8)".
I move amendment No. 111:
In page 63, lines 2 to 5, to delete paragraph (a) and substitute the following:
"(a) in subsection (1)—
(i) by the substitution in paragraph (c) of ’whether or not the Minister has a joint or several interest in such land’ for ’but in which the Minister has not a joint or several interest’, and
(ii) by the insertion of the following after paragraph (c):
'(cc) any other land held by the Minister for the purposes of the Wildlife Acts, 1976 and 2000,’,
(b) in subsection (2), by the substitution of ’seabed nature reserve, or to all or to all or any other land held by the Minister for the purposes of the Wildlife Acts, 1976 and 2000’ for ’seabed nature reserve’ where it last occurs,
Section 59 of the Principal Act enables the Minister to regulate in the interests of wildlife conservation public access to and use of our foreshore, which is the property of the State, refuges for fauna on State owned land and nature reserves on State owned land.
Section 63 will allow the Minister to make regulations for nature reserves on State lands, whether or not I have joint or several interest in such lands. The amendment will also enable the Minister to consider the protection of wildlife habitats and geological or geomorphological features in regulating access to the foreshore. Amendment 111 will allow me to make regulations for the purposes of the Wildlife Acts in respect of land held by me that is not the subject of designation or establishment order.
Under the Principal Act, the Minister only has the power to make such regulations if the land is the subject of a designation or establishment order. At any given time the Minister of the day may hold land that for a variety of reasons may not be designated, for example, land acquired as part of a razed bog restoration programme, land for a nature reserve which has not yet been designated or land acquired under an SAC compensation programme in disjointed holdings. It is appropriate that regulations could be made in respect of such lands for the purposes of the Wildlife Acts.
This relates to permitting and regulating public access to certain land.
It gives the Minister more powers to regulate access?
Amendments Nos. 112 and 113 will be discussed together.
I move amendment No. 112:
In page 63, line 38, after "person" to insert "or a member of the Garda Síochána".
Section 69 of the Principal Act provides that certain activities shall constitute an offence under the Act. It provides, inter alia, that a person who attempts to commit an offence, aids in the commission of an offence, contravenes regulations or refuses to provide identification shall be guilty of an offence. Section 64 of the Bill will also make it an offence to assault or obstruct an authorised official in exercising any power or function under the Wildlife Acts, to conceal specimens of unlawfully taken fossils or minerals or to contravene conditions attached to permission granted by the Minister under the Wildlife Acts, or to use a vessel, aircraft or mechanically propelled vehicle as an aid in the commission of an offence under those Acts.
Amendments Nos. 112 and 113 seek to provide that the provisions of this section also comprehend an assault on or obstruction of a member of the Garda Síochána who is exercising his or her power under the Wildlife Acts. The Bill provides that a person who assaults or obstructs an authorised person exercising his or her power under the Wildlife Acts will be guilty of an offence. It is proper that the same provision will apply in respect of a member of the Gárda Síochána in similar circumstances.
I move amendment No. 114:
In page 64, to delete lines 19 to 22, and substitute the following:
"65.—Section 70 of the Principal Act is hereby amended—
(a) in subsection (2) by the deletion of ’not below the rank of Assistant Secretary’, and
(b) by the insertion of the following after subsection (3):
'(3A) Nothing in this section shall prevent the prosecution under the Customs Acts of offences committed in contravention of section 53A(4)(b) of this Act.’,
and the said subsection (2), as so amended, is set out in the Table to this section.".
Section 70 of the Principal Act provides that the Minister may prosecute summary proceedings for any offence under the Act. The section also provides that persons other than the Minister or the Garda may initiate prosecutions under the Act with my consent or with the consent of an officer of at the least the rank of Assistant Secretary who is nominated by me. The Garda already has powers of prosecution independent of the provisions of the section.
Section 65 will allow the Minister to nominate any officer, regardless of rank, to decide on the issue of consent to prosecutions of private individuals under the Wildlife Acts. Amendment No. 114 is consequential on a number of amendments tabled to section 59 of the Bill. Its purpose is to ensure that section 70 of the Principal Act will not prevent prosecutions being taken under the Customs Act in respect of an offence involving the import or export of a CITES specimen.
I move amendment No. 115:
In page 67, to delete lines 9 to 17 and substitute the following:
"'(e) seize and detain any vehicle, vessel, aircraft or mechanically-propelled vehicle which he reasonably uspects of being used in committing an offence under the Wildlife Acts, 1976 and 2000, and which appears to him to be something which might be required in evidence in proceedings for an offence under the Wildlife Acts, 1976 to 2000.
(f) require, if considered necessary in order to determine the identity or ancestry of any specimen of fauna, the taking from that specimen of a sample of blood or tissue but only if—
(i) the sample is taken by a registered veterinary surgeon, and
(ii) in the opinion of the registered veterinary surgeon the taking of such a sample will not cause lasting harm to the specimen.',".
I move amendment No. 116:
In page 68, subsection (1), line 18, to delete "of subsection (2)".
Section 67 provides powers for the inspection of land for wildlife conservation purposes by authorised officers. Such powers are derived from the Wildlife Acts rather than from the Forestry Acts, as was previously the case under the Principal Act. The section will empower authorised officers to enter on, inspect and survey lands for the purposes of the Wildlife Acts, including the inspection of land to determine its suitability for designation as an NHA. Amendments Nos. 116 and 117 are technical in nature. Amendment No. 116 is necessary to clarify the powers of an authorised person in relation to section 72 of the Principal Act. Amendment No. 117 is necessary to correct a cross-reference used in section 67(9) of the Bill.
I move amendment No. 117:
In page 69, subsection (9), line 23, to delete "(3)” and substitute “(4)”.
Amendments Nos. 118 and 122 are consequential. Amendments Nos. 118, 120, 121 and 122 will be discussed together.
I move amendment No. 118:
In page 69, paragraph (a)(i), line 42, after “under this Act”’ to insert “and of ’subsection (2), (3) or (3A)’ for ’subsection (2) or (3)”’.
Section 69 of the Bill amends section 74 of the Principal Act which outlines the level of fines that may be imposed for offences committed. It is now proposed to substantially increase the level of fines and to provide for the imposition of prison sentences in certain circumstances. Under the Principal Act the maximum fine was £500. This has been increased to £50,000 or a term of imprisonment not exceeding two years. A further appraisal of section 69 has been carried out since the publication of the Bill and, resulting from this, I am now tabling amendments to improve the clarity of the section and close potential loopholes that were identified.
Section 74(1) of the Principal Act deals with general offences. Subsection (2) deals with more serious offences connected with the contravention of regulations and offences committed on nature reserves or refuges. This applies heavier penalties than that for offences under subsection (1). Subsection (3) deals with serious offences relating to species of flora and fauna in danger of extinction and also applies the heavier level of penalty applicable under subsection (2).
The amendments I am now proposing will not change the situation in relation to the retention of the scale or level of penalty as originally envisaged or the substantially increased penalties. They will, however, improve the clarity of the section. Amendment No. 120 will substitute two new subsections (3) and (3A) for the existing subsection (3) and a new subsection (4) for the existing subsection (4). The new subsection (3) will clarify that offences committed against the most important or threatened species will attract the heavier level of penalties. The relevant categories of species will be those in the Fourth Schedule of the Principal Act, those listed in annexes to the CITES Regulations and those covered by regulations made under the proposed subsection (4) of the section.
As regards subsection (3A), section 69 of the Bill as published already includes a reference to offences under Chapter II of Part III of the Wildlife (Amendment) Act, 1999, that is, the sections dealing with NHAs. However, on further reflection it seems to be inappropriate to include NHA offences in the category drawing the heaviest penalties, while offences in SACs draw significantly lighter penalties under the European Communities (Natural Habitats) Regulations, 1997. I propose in my amendment, therefore, that offences in relation to SACs should draw the same penalties as those relating to NHAs.
Subsection (4) is being substituted to allow the Minister to make regulations in relation to particular species of flora and fauna in danger of extinction or requiring special protection. This will leave it open to the Minister to make regulations to include, for example, species in the annexes to the EU habitats directive as well as species of particular importance from a purely national viewpoint. Amendments Nos. 118, 121 and 122 are technical amendments and consequential on amendment No. 120.
I tabled amendment No. 119 because I want to rid the system of soft options for offences, particularly low fines. I am seeking to amend the Principal Act. My amendment states:
In page 69, to delete lines 43 to 48, and in page 70, to delete lines 1 to 3 and substitute the following:
(ii) by the substitution, in paragraph (a), of ’conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months, or to both’ for ’conviction—
(a) in the case of a first offence under the particular section or subsection, to a fine not exceeding fifty pounds,
(b) in the case of a second such offence, to a fine not exceeding one hundred pounds, and
(c) in the case of a third or subsequent such offence, to a fine not exceeding two hundred pounds’,”.
The Principal Act is inadequate. I want to include "to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months, or to both".
The Minister explained amendment No. 118. She wants to discuss amendments Nos. 118, 120, 121 and 122 together.
I agree they are technical amendments which provide better wording.
I move amendment No. 119:
In page 69, to delete lines 43 to 48, and in page 70, to delete lines 1 to 3 and substitute the following:
(ii) by the substitution, in paragraph (a), of ’conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months, or to both’ for ’conviction—
(a) in the case of a first offence under the particular section or subsection, to a fine not exceeding fifty pounds,
(b) in the case of a second such offence, to a fine not exceeding one hundred pounds, and
(c) in the case of a third or subsequent such offence, to a fine not exceeding two hundred pounds’,”.
I have already outlined my proposal in relation to the penalties for offences committed under the Wildlife Acts. I have been advised by the Attorney General's Office that it would be inappropriate to have the same level of penalties for all categories of offences. This is a reasonable approach. Consequently, I propose to retain the graded system for penalties as already envisaged. I also intend to proceed with heavier levels of penalties through the graduated system. I am satisfied the penalties proposed are reasonable for the offences involved.
Perhaps the Minister could clarify if the paragraphs dealing with first, second, third and subsequent offences in the Principal Act will be deleted in her proposals.
Parts one and two on page 70 of the Bill will remain in the table. I am substituting the third part on page 71 of the Bill and then there will be a fourth part.
Deputy O'Shea's amendment refers to page 69, but the Minister explained that amendments Nos. 118, 120, 121 and 122 were on page 70.
I am referring to section 69.
I am unclear about this matter. Will the graded fines remain part of the legislation?
Is it wise to give soft options in court?
The penalties have been increased. It was £500 but it is now £50,000.
I am talking about the graded fines of £50, £100 and £200.
For the category offence, namely a first, second and third offence, the penalties have been increased. There is also a grading offence for which the penalties have been increased.
To what levels have they been increased?
The proposed maximum fine for the first offence was £50 but it is now £500. The old maximum was £500 but it is now £50,000 or two years.
The old maximum I wanted to delete was £200. It is £50, £100 and £200.
The present position is that there is a £50 fine for the first offence and a £200 fine for the third offence, but there is no prison sentence. It is proposed to increase the fine for the first offence from £50 to £500 or three months in prison. We also propose to increase the maximum fine for the third offence from £200 to £1,500 or 12 months in prison. We still have the graduated offences and we have increased the penalties.
I move amendment No. 120:
In page 70, to delete lines 15 to 30 and substitute the following:
"(c) by the substitution of the following for subsection (3)—
'(3) Where a person is guilty of an offence under Part II or under section 45, 47, 51, 52, 53, 53A or 58(3)(b) of this Act in relation to—
(a) any specimen of a species of fauna specified in the Fourth Schedule to this Act,
(b) any specimen of a species listed in annexes to the CITES Regulations, or
(c) any specimen of a species of flora or fauna which is of a species for the time being declared by regulations under this section to be a species to which this subsection relates, such person shall be liable—
(i) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or
(ii) on conviction on indictment to a fine not exceeding £50,000 or to imprisonment for a term not exceeding 2 years or to both.',
(d) by the addition of the following after subsection (3):
'(3A) Where a person is guilty of an offence under Chapter II of Part III of the Wildlife (Amendment) Act, 2000, or under the European Communities (Natural Habitats) Regulations, 1997 (S.I. No. 94 of 1997), such person shall be liable—
(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or
(b) on conviction on indictment to a fine not exceeding £50,000 or to imprisonment for a term not exceeding 2 years or to both.’,
(e) by the substitution of the following for subsection (4):
'(4) Where the Minister is satisfied that a particular species of fauna or flora is in danger of extinction or requires special protection because of a threat to its existence throughout the State or in any specified area of the State, the Minister may by regulations declare—
(a) the species, or
(b) the species in any specified area,
to be one to which subsection (3) of this section relates.',
and the said subsections (1) and (2), as so amended, are set out in the Table to this section.".
I move amendment No. 121:
In page 70, line 33, to delete "subsection (2) or (3)" and substitute "subsection (2), (3) or (3A)".
I move amendment No. 122:
In page 71, to delete lines 3 to 14.
I move amendment No. 123:
In page 71, paragraph (a), line 17, to delete “flora or fauna” and substitute “fauna, flora, fossils or minerals”.
Section 70 of the Bill will amend section 76 of the Principal Act which deals with the issue of forfeiture. The list of items which may be forfeited by order of the courts will include derivatives of flora and fauna. Mechanically propelled vehicles and aircraft will also be included. A new mechanism is being set down whereby cases may be referred to higher courts on account of the estimated value of the items liable for forfeiture. Amendment No. 123 will stipulate that specimens of a fossil or mineral, as well as specimens of flora or fauna, included may be forfeited by order of a court.
Essentially it is a technical amendment.
Amendment No. 124 has already been discussed with amendment No.4.
I move amendment No. 124:
In page 73, paragraph (b), line 12, after “thinks fit.’,” to insert “and”.
I move amendment No. 125:
In page 73, paragraph (c), line 14, to delete “and”.
I move amendment No. 126:
In page 73, lines 15 to 18, to delete paragraph (d).
I move amendment No. 127:
In page 75, paragraph (a), to delete lines 33 to 38 and substitute the following:
" 'European site' means—
(a) a site—
(i) notified for the purposes of Regulation 4, subject to any amendments made to it by virtue of Regulation 5, or
(ii) transmitted to the Commission in accordance with Regulation 5(4), or
(iii) added by virtue of Regulation 6 to the list transmitted to the Commission in accordance with Regulation 5(4),
but only until the adoption in respect of the site of a decision by the Commission under Article 21 of the Habitats Directive for the purposes of the third paragraph of Article 4(2) of that Directive,
(b) a site adopted by the Commission as a site of community importance for the purposes of Article 4(2) of the Habitats Directive in accordance with the procedure laid down in Article 21 of that Directive,
(c) a special area of conservation,
(d) an area classified pursuant to paragraph (1) or (2) of Article 4 of the Birds Directive;”.
Section 76 will amend the European Communities National Habitats Regulation 1997 which gave effect to the Habitats Directive under which special areas of conservation, otherwise known as SACs, are designated. The section as published provides for the introduction of an amended definition of European sites for the purpose of the Habitats Regulations.
In addition, section 76 proposes to revoke regulations 21 and 22 of the Habitats Regulations which deal with the application of section 21 and 45 of the Principal Act. These have been revoked because the relevant provisions are now being inserted directly into the Wildlife Acts through other proposals in the Bill. I am now proposing two further amendments to section 76. Amendment No. 127 provides a further updated definition of "European site". Reflecting that included in the Planning and Development Act, 2000, this will ensure consistency in legislation.
Amendment No. 128 will revoke regulation 39 of the Habitats Regulations. This sets out the penalties applicable for breaches of the Habitats Regulations and the penalties therein were significantly less than those proposed in relation to NHAs in section 69 of the Bill.
I have already covered my intention to bring the penalties relating to offences, including SACs, into line with those of NHAs, and consequent on this I am now proposing that regulation 39 be revoked.
I move amendment No. 128:
In page 75, paragraph (b), line 40, to delete “Regulations 21 and 22” and substitute “Regulations 21, 22 and 39”.
I would like to take this opportunity to thank everyone who participated in the debate. I thank the Minister and her officials for the efficient way in which the Bill was dealt with. We will see you all on Report Stage.